What Gillibrand Got Wrong About Military-Sexual Assault

Senator Kirsten Gillibrand was defeated Thursday in her effort to change the rules for prosecuting sexual assault in the military. That does not necessarily mean, though, that her cause has also suffered a loss. Gillibrand, after her bill failed on a procedural vote, made it sound like the women and men who serve had been cravenly abandoned, as they have been so many times: “Today, too many members of the Senate have turned their back on these victims and survivors.” But that is a disingenuous explanation for why women senators like Claire McCaskill, and Democrats and Republicans, were on the other side of this vote. Gillibrand’s passion on the issue of military assault (something Evan Osnos wrote about for The New Yorker) is unquestioned, and has already helped to push through crucial changes. On this particular bill, though, she may have been going about it the wrong way.

The center of the dispute is this: Gillibrand’s bill would have taken the handling of sexual-assault cases out of the chain of command entirely. Under the Uniform Code of Military Justice, superior officers have a role in convening court martials. Until recently, a soldier who had been raped would have had to first bring a complaint to her immediate unit commander. This could, and often did, place victims in a disastrous situation: the rapist might be the commander, the man who had day-to-day power over her. Or he might be the attacker’s friend or mentor. It was a dilemma that drove women to silence or out of the military, and kept sexual predators in place.

That trap was described vividly in “The Invisible War,” a documentary that managed to shock people even within the Pentagon. After Leon Panetta, then the Secretary of Defense, watched the film in 2012, he instigated changes in the rules so that the complaint would have to go to someone at least at the level of colonel (or Navy captain) and a couple of levels higher than that if, say, a colonel was involved.

There were more helpful changes in the National Defense Authorization Act, passed in December. Senior commanders will no longer be able to overrule convictions in sexual-assault cases. (In one recent, outrageous case, a general had set aside the conviction of an Air Force colonel for aggravated assault.) If a commander and a military prosecutor disagree about whether a case, once started, should go forward, the question gets sent up to the secretaries of the services. If they both don’t think that it should go forward, a higher authority has to look at that, too. Also, the N.D.A.A. ended the statute of limitations on military sexual assault—something that could be particularly important in a long war. Victims also get their own counsel. These measures are, in great measure, the result of the tenacious efforts of many women legislators in both houses of Congress, as well as men like Senator Carl Levin. (That is, not just Gillibrand.) Obama has told the Pentagon that it must make these measures work, and quickly: “If I do not see the kind of progress I expect, then we will consider additional reforms.”

Is that enough? Is any involvement by the chain of command in sexual-assault cases a mistake? Gillibrand would say yes—that it’s a conflict of interest. She is disappointed that Obama didn’t put his weight behind her bill now. Many survivors and advocates who have long, painful experience with the workings of the military would agree.

One can fully respect that view and not share it. It’s not just that, as many around the military argue, this is how it works for all sorts of crimes. McCaskill, who has prosecuted sexual-assault cases herself, has argued that, as well-meaning as it sounds, pulling out sexual assault in this way would result in fewer prosecutions. Part of the reasoning is technical and structural: while commanders are motivated by discipline and order (as well as, one hopes, respect for the law and concern for and loyalty to all their troops), prosecutors are often looking for cases that they can win. If it is left up to the prosecutors alone, they might have a more jaundiced view of how a jury would hear a witness than does a commander—again, no longer the unit commander, and no longer alone. And part has to do with the changing culture of the military: McCaskill and others have fought hard to make commanders more responsible for addressing the crisis of sexual assault in their ranks, not less so. (McCaskill and Kelly Ayotte, a Republican, also co-sponsored another bill to strengthen the N.D.A.A., which moved forward easily on Thursday.) The idea here is that it has to be an element in what we consider a good officer, a part of promotions and evaluations. A commander shouldn’t just shrug and guess that, if a young soldier really has a problem, he or she will go to someone else’s office.

Gillibrand finds this all woefully inadequate, and a little deluded. “It’s like your brother committing the sexual assault and having your father decide whether to prosecute,” she said before the vote she lost, according to The Hill.

Again, Gillibrand’s commitment is right and real, and the Pentagon’s aversion to her approach may have made the N.D.A.A. easier to pass. But maybe I just don’t believe that what she portrays—sister, brother, dad—is the picture of the future of the military. There is an assumption that sexual assault has to be taken out of the chain of command because that is where you find senior men in positions of authority over subordinate women, and always will. But women are not junior partners in the military; today, they can’t be. One in seven active-duty service members in our all-volunteer military is a woman. (It's closer to one in five in the reserves and National Guard.) The highest ranks don’t reflect that yet, in part because of restrictions on women in combat (which are changing). They will, though. Increasingly, the person behind that colonel’s office door is going to be a woman—or, for that matter, an openly gay man, or one who has been mentored in his military career by a woman. And then the bypassing of the chain of command will feel more like the loss it is. The prospect of a better approach to sexual-assault cases is just one of the reasons that women military leaders should be allowed and encouraged to rise. Perhaps then the idea of real command responsibility, like so many things, won’t seem so impossible.

Photograph by Charles Dharapak/AP/Corbis.

Amy Davidson Sorkin, a staff writer at The New Yorker, is a regular contributor to Comment for the magazine and writes a Web column in which she covers war, sports, and everything in between.